Balancing Act

“The Corvette guy,” Ellen Biben said.

The New York inspector general ran a hand through her long blond hair and started to tell a story. She relishes the tale of her first big case in her last job, when she was an ambitious prosecutor plucked to head an office nobody paid much attention to.

The Corvette guy. James Leggiero, auditor at the state’s Office of Mental Health. State salary of $79,500 a year, owner of several cars above his pay grade: a Cadillac Escalade and three Corvettes, including a classic from 1958.

“It’s not the case of the century,” Biben said. “But he was an auditor at OMH, and he set up an outside phony company called ‘V.I.P.,’ and they didn’t have great internal controls, so he was the one who got the invoices.

“He had control over verifying payments, so he was essentially authorizing checks to his made-up company for years.

“For ten years. Over a million dollars. He had six Corvettes.”

That was 2007. Since then, Biben has caught, or helped catch, bigger fish. She was the lead prosecutor on the pay-to-play investigation that brought down former state comptroller Alan Hevesi. Her work on that case so impressed Andrew Cuomo that he named her to head the office of inspector general – one of his first acts on taking office.

Her office on the 21st floor of a downtown Manhattan skyscraper is big, complete with a view of the Hudson River. When she started as the head of the Public Integrity Unit in the attorney general’s office, she had three people working with her. Now she has a staff of 59.

It may be a higher-profile gig, but it’s not without its shortcomings. Biben is heading an office that has been bruised for years by allegations of bias and accusations of toothlessness. The inspector general has a $6.5 million budget and broad investigatory authority over 50 separate agencies with more than 190,000 employees—but the office has little enforcement power.

And the list of things she can’t do is long: She can’t bring an action against someone. She doesn’t have the power to bring an accusatory instrument like a complaint or an indictment. She can’t go into a grand jury and ask them to use an accusatory instrument. She can’t bring charges, she can’t sanction and she can’t ask a court to issue a fine.

As Cuomo positions himself as the savior of Albany and restorer of ethics and good government, where does that leave Biben?

“I’m still trying to wrap my arms around this,” Biben said. “When people ask me, ‘What do you do?’ I don’t even know what the answer is.”

Above all, Biben, 44, is regarded as a capable prosecutor. She has been able to advance in Cuomo’s office partly through her ability to command respect from the people she’s paid to argue for—and against.

Cuomo had never met Biben when he offered her a position as chief of the Public Integrity Unit, the arm of the attorney general’s office that investigates government corruption. Instead she’d caught the attention of his chief of staff, Steve Cohen, when the two argued on opposite sides of a labor racketeering case. At the time, she was the deputy bureau chief of rackets under former Manhattan District Attorney Robert Morgenthau.

“She was as open-minded and fair a prosecutor as I had ever met,” Cohen said of their initial meeting. “I told the governor, ‘You’ve got to meet this woman. She’s absolutely the kind of lawyer you want.’ ”

What they wanted, Cohen said, was someone who could handle cases that “by their very nature attract attention, just because of the positions held by the individuals involved.” Cuomo’s office wanted to pursue high-ranking officials, but needed a prosecutor who would tread carefully.

“Ellen has a rare ability to be both aggressive in the way she looked at cases, but very deft and subtle in her approach to the individuals involved,” Cohen said. “She was powerfully effective without wielding a sledgehammer.”

Former New York State Chief Judge Judith Kaye worked with Biben when the two investigated ex-Gov. David Paterson’s involvement in a former aide’s domestic violence case.

Biben knew there were some very important people who would pay very close attention to the final report issued in July of 2010, including Kaye and Cuomo, who was then preparing for his gubernatorial campaign.

“She had my complete trust,” Kaye said, “but I watched very carefully.”

She added, “This was an extremely, extremely sensitive matter.”

Biben’s supporters and her opponents all end up emphasizing one trait.

“Tough,” said Karl Sleight, former head of the state Ethics Commission, who as a private lawyer now represents the subject of a Biben investigation, former SUNY Research Foundation chairman John O’Connor. “Tough but good.”

Biben does not look or sound particularly tough. She talks with her hands, has an easy laugh. She’s self-deprecating.

On this particular day she is wearing multiple bracelets—a thick red cloisonné bangle and a huge silver watch that sparkles in the sun. Around her neck she wears a long strand of Lucite baubles, and on her lower lids a trace of purple eyeliner. She commiserates about the stairs in the Capitol building in Albany, making travel up and down something of a challenge for those of the heels-wearing persuasion. On a particular day in July she has on a pair of three-inch black wedges, à la mode and yet functional.

Biben grew up on the Upper West Side, but her path to law and order was indirect. She graduated from Wesleyan University in 1987 with a degree in English literature, at a time when the school was a hotbed of fringe political activism. She did community theater, and the traces of liberal-arts education flavor her speech. (She immediately recognizes a reference to Rashomon, a foundational film of Japanese cinema.) She narrates cases with dramatic pauses.

A year ahead of her in college were Transformers director Michael Bay and Buffy the Vampire Slayer creator Joss Whedon, whose mom taught Biben high school English at Riverdale Country School. She doubles over at the suggestion she might bear some resemblance to the petite blond vampire slayer, knocking out the bad guys in Albany.

Biben attended law school at the University of Southern California, and clerked for a judge in Connecticut. She spent a short time as a litigator at Sullivan & Cromwell before deciding she wanted a job with more tangible results. She interviewed with Morgenthau’s office, taking a job as an assistant district attorney in the rackets bureau.

She learned to spot patterns in corruption, how to reconcile lies and bad memories with paperwork that corroborated or disproved a story. She was named deputy chief of the rackets bureau in 2001, four years after she started.

When Biben accepted the Public Integrity Unit post with Cuomo in 2007, she took over an office that had been gutted by prior administrations but was suddenly facing its most high-profile case in years.

State Comptroller Alan Hevesi had won reelection the previous fall, despite a charge by the State Ethics Commission that he had used state resources to chauffeur his ailing wife to doctors’ appointments. Biben caught the case a few months into the job.

“I get there, I’m brand-new, don’t know what to expect,” Biben said. “The office was certainly not about criminal public integrity. It was looking at ethical violations, conflicts of interest. If anything had a criminal element, they didn’t do it.”

Biben approached the Hevesi case with a dual method. The lawyers in every branch of Cuomo’s office were instructed to find creative ways to prosecute cases, because attorneys general have limited authority in criminal cases. They were told to use the Tweed Act and the Martin Act—decades-old laws that were primarily used combating securities frauds—to help prosecute public corruption.

Biben and fellow prosecutor Linda Lacewell approached the Hevesi investigation the same way one would attack an organized-crime web. Only in hindsight, noted Biben, does the case appear to have fit the bill; at the time, “we weren’t even sure what it was,” she said. When the case was given to her, she was asked to look into Hank Morris, the placement agent whose activities provided her an investigative entry point into the pay-to-play racket.

“You say ‘Hank Morris’ to some people and they’re like, ‘Oh, Hank Morris!’ ” she said. Biben, who describes herself as nonpolitical, said she didn’t even know who Morris was at the time. Now, however, she has become so familiar with the case that Attorney General Eric Schneiderman’s office has retained her as a special attorney general to handle ongoing sentencing hearings.

What she learned from the Hevesi case she plans to apply to the IG’s office—an approach that combs through individual cases looking for evidence for a systemic problem, what Biben calls “teachable moments.” The Hevesi case eventually led to changes in the way the state manages its pension system, and she hopes investigations in her new post can do the same. Her probes so far, into parking-placard abuse, into various frauds by state workers, have been lauded.

But chasing after Albany’s bad guys without enforcement power has been a challenge for every inspector general who ever dug into a case, only to find that recommendations for an employee’s dismissal or for further investigation were summarily ignored—by law enforcement, by the press, by other state agencies.

Friendly relations between the state’s investigative agencies help cut down on procedural errors. And experts say Biben has to know the other state agencies well enough to know when an investigation should be referred elsewhere.

“You don’t want to bungle an investigation by having people who aren’t trained do something that violates someone’s constitutional rights,” Sleight said. “Then you’ve lost your whole case.”

Biben should be able to combat this difficulty in part because of her closeness with some of the agency heads who moved with her from the prior Cuomo administration, like Commission on Public Integrity Chairwoman Mitra Hormozi and State Police Superintendent Joe D’Amico. Familiarity can make it easier to press her cause.

Good-government groups say it is also her greatest liability. To be an effective IG, they say, Biben must show total independence from Cuomo.

“Everybody that gets into a position in government where they are in an investigative capacity is appointed by somebody,” said David Grandeau, former head of the state’s Temporary Commission on Lobbying. “There’s no original sin here.”

What is original about Cuomo’s administration is the degree to which he has relied on close lieutenants from his attorney general days and former aides to his father to fill top posts in his new administration. The staff is close-knit, giving rise to an undercurrent of concern: Is the Cuomo team too tight to maintain agency independence? Can they police themselves?

Cuomo’s influence over the inspector general’s office seems particularly strong. He has made a point of publicly announcing his desire for the IG to investigate state problems like rate setting at the Long Island Power Authority. Last week, a New York Post editorial described the governor’s request for Biben to look into the state racing authority with this headline: “Cuomo Sics Inspector General on NYRA.” Cuomo, the headline implied, calls the shots.

This spring Biben began probing allegations of corruption at the SUNY Research Foundation, after the agency had already come under investigation by the Commission on Public Integrity.

Biben wouldn’t comment on the number of investigations she’d undertaken at the specific behest of the governor, but said inter-agency closeness helped more than hindered.

“To be independent and be able to do your job with integrity does not mean you need to be strangers,” Biben said. “We all know each other—not because we were hanging out and all decided to get these jobs. We know each other because we were brought together in a professional environment.”

The office has to maintain the appearance of being completely nonpartisan, even if that means proactively auditing the executive chamber. Cuomo himself pressed that point in a 2001 New York Times article when Gov. George Pataki’s former inspector general, Roslynn Mauskopf, was being considered for U.S. Attorney for the Eastern District. At the time, Cuomo was leaving the Clinton administration and preparing his ill-fated first run for governor.

“As inspector general,” Cuomo told the Times, “Mauskopf has been noticed only for her conspicuous silence. She has failed to press a single investigation of any major official in the Pataki administration.”

“The office should never be political,” said Joseph Spinelli, who served as inspector general and under former Gov. Mario Cuomo and ethics commissioner under Paterson. “I’m not going to opine on Pataki’s administration, but I will say that after I left office, senators said, ‘This isn’t a patronage office.’ I’m not sure that was duplicated under Pataki.”

Biben is currently working on 250 active investigations, out of more than 2,500 complaints it receives each year. This is partly the result of her own indefatigability—Spinelli said she drew comparisons to the Energizer bunny—and partly the result of a changed investigatory climate in Albany.

The state has multiple ethics-enforcement agencies, but even these have been plagued by allegations of abuse in recent years. The IG’s office suffered under the Spitzer administration, when Kristine Hamann was forced to resign following revelations she had treaded softly around a Troopergate scandal that directly implicated the governor’s secretary, Richard Baum.

One of the outgrowths of Troopergate was a series of reports that recommended changes to New York’s ethics-enforcement system. One, by the New York State Commission of Investigation, concluded that “several agencies with competing interests, each of whom lacked sufficient jurisdiction to conduct a thorough investigation into all of the issues, created a situation whereby investigations were conducted in a piecemeal fashion.”

The verdict was harsh: The agencies caused lengthy delays and burdened taxpayers. New Yorkers had lost “confidence in the state’s ability to police itself,” the report concluded.

This has resulted in conflicting suggestions. One report sent to Cuomo’s efficiency task force suggested consolidating more power underneath the IG—giving the office the ability to investigate state agencies that already have their own IGs by statute. Other reports suggested rolling the IG’s functions into the attorney general’s office. Some reports suggested investigations had taken on the flavor of politics; that they overlapped and were redundant.

Cuomo, Schneiderman and other officials elected last year came to Albany promising to sweep the capital clean. But that has led to suggestions of conflict as the agencies try to out-police one another, a charge they all deny if asked.

“No one’s out to try to get their name in the paper; they’re just trying to save taxpayer dollars,” says Nelson Sheingold, who heads up the division of investigations in the comptroller’s office, one of the agencies auditing the SUNY Research Foundation.

Still, Cuomo likes to consolidate power under his own handpicked deputies, Biben among them. He also is not immune from politicking under the banner of ethics. Critics note that when the governor was attorney general, his Troopergate report devoted more pages to raking Spitzer across the coals than it did looking into allegations former Senate Majority Leader Joe Bruno had broken the law.

Cuomo also has been attacked for conducting the state’s business under a veil of secrecy—concerned more with results than with getting them in a transparent fashion.

“I think Cuomo is one of the best political operators I’ve ever seen,” said David Grandeau. “But there’s a big difference between operating politically, and redoing ethics in New York. You can’t do it behind closed doors; you have to do it way out in the middle of State Street, so everyone can see what you’re doing.”

Politics can be the enemy of a good inspector general, and it’s an area in which Ellen Biben, by her own admission, has little expertise.

In the Troopergate shuffle, when then Inspector General Joseph Fisch recommended the dismissal of CPI commissioners for their ethics violations, Paterson followed up and asked for their resignation.

The CPI declined, and subsequently opened an investigation into Paterson’s receipt of free Yankees tickets. They fined him $60,000, and eventually Paterson dropped his reelection bid. The Yankees Entertainment Group wasn’t investigated.

Good-government groups still have high hopes for Cuomo’s administration—and for Biben.

“I think we just went through a dark decade,” Sleight said. “There’s hope that there will be some return to normalcy. I think at the same time there’s been a bar that’s been set, in terms of a willingness to investigate. The expectations for ethical conduct are now very high.”

Cuomo will stake some of his legacy and future political aspirations on how well he can clean up Albany’s notorious standards for doing business. He negotiated a tough but flawed ethics bill, though he has yet to sign it. And he has Biben.

She is no shrinking violet. She was on the varsity swim team in college; she does push-ups every day. She turned down personal gain as a litigator for the thrills of sniffing out corruption. And if she gets a complaint about the governor who appointed her, or anyone on his staff, she insists she’ll treat it as seriously as any other.

“The office reviews every complaint that comes in,” she said. “I swore an oath to this job and I fully intend to uphold that oath.”